How do we guard ourselves against abuse by the government employees who are responsible for collecting information on the parameters of the Interception of Communications Act from mobile networks and telecoms service providers? Can the state monitor me just for the sake of it or do they need to have a compelling case of suspicion, and where does the state go for approval? This issue needs to be discussed so we also watch over the state for abuse?
By Tendai Tagwirei
The right to privacy is recognised and protected in the Constitution of Zimbabwe. However, it is accepted that this right is not an absolute right and that in certain limited instances that right may be limited.
In the article titled Who is watching you: The Limits to the Right to Privacy, we talked about the right to privacy. In another article titled Interception of Communication and the State we talked about the limits to the right to privacy and the different laws that allow the state to limit that right.
Although the state has the right to intercept communications, it is not entitled to do so as it pleases. The state must show that it is necessary to do so when it is in the national interest to do so or to prevent serious crimes.
It is important to understand that the grounds under which the state may make an application for a warrant of interception are rather broad and there is room for abuse.
The grounds for intercepting postal articles are even wider as the offences on which one may carry suspicion do not even have to be serious ones in order to warrant interception.
Applications for lawful interceptions are made to the Minister of Transport and Communications (or any Minister assigned by the President). It is the Minister who then provides warrants (or approval) for such interception.
However, it would be more desirable for warrants for interception to be given by an independent body such as the judiciary as it is impartial and is in a better position to make decisions on whether there is a lawful basis for such interception. In other jurisdictions, such as in South Africa, an application for interception is made to the judiciary.
It is also important to note that the requirements set out in the application for a warrant for interception of communications simply address the ‘who’ ‘when’ and ‘where’ questions without making mention of the content that may be accessed.
The State can get access to all information regardless of whether it is relevant in the national interest or to prevent serious crimes. This is unlike in other jurisdictions, such as the United States, where for someone applying to get an interception warrant has to show that the interception that they intend to conduct will be done in such a way as to minimise the interception of other content which is not relevant. For example, the interception equipment may be turned off when contents which are outside the scope of the authorisation are heard.
It is very difficult under the current Interception of Communications Act for individuals to protect themselves from abuse of the State. The Act does not give the affected person an opportunity to be heard before the warrant is issued.
However, the affected person may appeal to the Administrative Court after becoming aware of the warrant or the directive for interception. The problem with this kind of protection is that many people may never become aware that their communications are being monitored by the State.
Although the Act provides for the Minister’s powers to be reviewed by the Attorney-General, at most, such reviews will only lead to recommendations being made by the Attorney-General to the Minister and the matter is taken no further.
In comparison, in the United Kingdom, reports on interceptions are tabled in Parliament and further made available to members of the public. Members of the public are afforded an opportunity to make complaints and may even be awarded compensation where the interception was unjustified.
Also, in the United States, affected individuals may make an application to have portions of the intercepted material made available to them and this puts them in a better position to determine whether their right to privacy has been infringed upon unreasonably. This constant monitoring and transparency in other jurisdictions prevents abuses being done by State officials.